Every Accusation Is A Confession, Supreme Court Edition

 The maxim of "every accusation is a confession" really described the early Trump year and has gone on to be an excellent rule of thumb for understanding Republican talking points.

We can now extend this to the Supreme Court.

For decades, the understanding of the Right, especially religious conservatives, was that the Warren and Berger Courts (and, hell, the Rehnquist Court) had been "lawless," making up rights out of whole cloth. There is no literal "right to privacy" though it is implied by several other parts of the Constitution. That right to privacy undergirds Griswold, Roe, Lawrence and Obergfell. The equal protection clause has been used to endeavor to do exactly what the authors of the XIVth Amendment hoped to accomplish.

However, what the Court is doing now, constitutes an assault on the basic standards of good governance. Dobbs will create a horrifying patchwork of inconsistent and inconsistently applied laws. They have stripped tribal lands of autonomy. Now they are attacking the basic assumption of a regulatory framework that has allowed for public health and safety to advance steadily since the 1960s.

None of this has any real merit under the law. The "reasoning" in Dobbs is terrible and the "reasoning" in West Virginia v EPA is equally horrible.

With a 6-3 majority, the Court is effectively unaccountable to anyone. Even if Alito or Thomas were to drop dead tomorrow, the 5-4 majority would continue to destroy the existing framework of American law.

I honestly have no idea what will reverse this beyond time and continued Democratic victories at the polls.

UPDATE: Jon Chait runs through the difficulty of reforming the Court.

Nancy Pelosi Is Good At This Shit

 Jennifer Rubin has noted Pelosi's strategy for dealing with Dobbs. It's a very interesting one and signals that Pelosi understands that finding popular positions and making the GOP vote against them is good politics. Here is her plan:

1) Hold a vote on a bill to prohibit prosecutors from searching women's health apps. There is a broad worry that some theocratic fascist like Ken Paxton will target apps that track women's menstrual cycles in order to find women who've had abortions. It also plays into our fears both of governmental overreach and Big Tech's ability to spy on us.

2) Hold a vote on a bill guaranteeing freedom of movement. States like Missouri are threatening to prohibit people from leaving the state for abortions. Personally, I think this is so blatantly unconstitutional that even the Guardian Council Supreme Court would strike it down, but again, let's see who votes against it.

3) Hold a vote on enshrining Roe. This has already failed on a party line vote in the Senate, so I'm not sure what the point of it is, aside from political. That's not a reason not to do it, but I think there's a slim chance the previous two could actually succeed, this one is DOA.

4) Additional votes codifying Obergfell, Griswold and Lawrence. This is really smart. (For the record, Obergfell=marriage equality; Griswold=right to contraception information; Lawrence=right to sexual privacy) I remains somewhat skeptical that there are votes even now for overturning these rights, as only the real fringes of American politics want to get rid of Griswold. But the recent decisions of the Court have made it abundantly clear that "they probably won't do that" is a terrible strategy.

In this retreat to Gilead, I've been monitoring my conservative cousin in Texas on Facebook. She is very conflicted about Dobbs and trying to rationalize that it's not "that bad" without looking at the trajectory of these laws in places like Missouri. Her friends - presumably also in Texas - seem more upset. A strategy that forces Republicans to choose between their theocratic base and potentially persuadable swing voters.

Right now, people are pissed. Between Dobbs and the January 6th hearings, they are furious at Republicans. The "generic ballot" between a "Democrat" and a "Republican" has swung about 10 points in Democrats' favor. That, however, could fade by November. 

Keep the heat on.

Invisible Misogyny

 The other day at work, Thing One had an ancient coworker (on a construction site) drop the N-word. This was clearly a test to see if the young kid was "woke," which is to say, "not a racist fuck."

I'm not a fan of speech codes or many of the neologisms that have been created to try and grapple with the very real legacy of racism and sexism in the world. The "decolonizer" thing gets a hard eye-roll from me. But it is also clear that things that used to be normal are no underground and nearly taboo. 

Paul Campos writes about a woman whom Nixon wanted to elevate to the Supreme Court. She was likely sunk by chauvinism. Warren Berger threatened to resign if Mildred Lillie were appointed to the Court. Thurgood Marshall had been on the Court for four years at that point, but a woman was a bridge too far. 

Some of this has come up with people relitigating the 2016 election on Twitter. The argument goes something like this:

"We told you that the 2016 election was a critical election and all you idiots who voted for Jill Stein and stayed home are responsible for Roe being overturned and America's descent in theocracy."

"Not my fault that the Dumbocrats nominated the most unpopular nominee in history."

Was Clinton unpopular? Yes, she was. About as unpopular as Trump, but very unpopular. Her favorable ratings were in the high 30s, which is really bad. But it's more complicated than that.

When she was Secretary of State and before she declared for the presidency, Clinton's favorable rating peaked at 66%. Her previous stint under 50% was when she ran for president in 2008 and when she ran for the Senate in 2000. In other words, Hillary Clinton was, in fact, popular when she was "doing the job" but not when she "asked for a better job." She was an impactful First Lady, a very good Senator and a very good Secretary of State. She become unpopular as a candidate. A lot of this was framed as her being a bad politician, but that's kind of a causal loop. She lost, so she's a bad politician and she's a bad politician because she lost.

There's some research that people like women doing important work, but they really don't like it when women ask for promotions or a better job. They prize competency in women, but not ambition.

Because women, Black people and other historically disadvantaged groups have made real progress in recent years, it's been tempting for people to talk about how we've "moved past" our former sins. That was a big line when Obama was elected, "America's no longer racist because we have a Black friend!" But we haven't even gotten that far with women. In fact, women have always trailed behind Black men when it has come to their elevation. Black men got the vote before women (though that right was fragile), a Black man was a Supreme Court justice and President before a woman.

It's striking to me that the highest position a woman has risen to in America is Speaker of the House. Becoming Speaker is about personal relationships between rival factions. It's about herding cats. It's about competency. Nancy Pelosi doesn't need to be "popular" with the old fucker who dropped the N-word in front of my son. Neither, for that matter, did Margaret Thatcher or Teresa May. 

The Glass Ceiling still exists, and I just don't know what it will take to break it.

Promises To The People

 Yglesias has been hammering his "popularist" idea and he found an example of an Australian party running on a narrowly tailored list that allowed them to avoid the pitfalls of unpopular far left culture war positions. In his piece, he notes that Perry Bacon has come up with a similar idea for Democrats for the midterms. It's a ten point plan called Promises to the People. Here are the ten planks.

1. Eliminate the filibuster.

2. A national law guaranteeing a right to an abortion in the first trimester and in all cases of rape and incest.

3. A democracy reform law mandating independent commissions to draw state and congressional districts lines free of gerrymandering; vote-by-mail and two weeks of early voting; proportional representation through multi-member congressional districts; and measures to prevent election subversion.

4. A ban on the sale of military-style weapons such as AR-15 rifles and high-capacity magazines, along with universal background checks for gun sales.

5. A minimum income tax of at least 20 percent on billionaires.

6. A ban on members of Congress buying individual stocks.

7. National marijuana legalization.

8. A climate change plan that puts the United States on a path to net-zero carbon emissions by 2050.

9. A required civics and life-skills course for high school seniors, with the same curriculum throughout the country.

10. Voluntary term limits of 12 years in Congress for all Democrats (six terms in the House, two in the Senate).

It's not a bad list. Off the bat, I'm OK with numbers 1, 2, 4, 5, 6 and 8. They are focused and popular. Number 2, especially, turns down some of the heat from justifiably angry women who want to use outrage to create a more sweeping right to an abortion. While their anger is understandable, expanding abortion rights beyond Roe/Casey is a bad idea because the GOP has given you a wedge issue with the Dobbs ruling and you should leverage that to protect actual abortions. Same with 4, as that's roughly the position that holds large majority support.

The ones I have quibbles with are the following.

The first half of 3 is great. But going to proportional representation would likely require a constitutional amendment. Drop that and that's a good plank,

Number 7 is potentially tricky, and Biden has largely avoided this issue, wisely, I think. If the Federal marijuana law were simply to throw the issue to the states, and remove all criminal penalties for anything except international trafficking...OK. That's a good bill. 

Number 9 is a nasty can of worms, and I don't think it would be good politics. First, Fox and the GOP would immediately decry the nationalization of civics education. They would claim that AOC is going to indoctrinate your kids with socialmalism. The fact that it's a lie is irrelevant to the current political climate, those attacks will land. I understand the impulse to create a standard civics curriculum- American civic education is clearly poor - but I don't think this is a "popular" position.

Number 10 is just a bad idea. Term limits have been proven time and again to empower the shadow state of lobbyists and think tanks. If, instead, there were an effort to create a mandatory retirement age for Senate and Congressional leadership...that might work. The fall into gerontocracy is a real burden for effective legislative action. Pat Leahy and Dianne Feinstein should not be in the Senate anymore. Nancy Pelosi should be actively preparing for her successor.

There's also the fact that 8 items are better than 10, if you're trying to narrow the agenda. I suppose you could put some anodyne language in a plank about making sure that the civil rights of all Americans are respected could be good. You're not taking a stance on LGBTQ or religious freedom overtly, but it's implied in language that won't offend anyone.

The idea of creating a national agenda that is narrowly tailored to avoid pitfalls is a good one. Yglesias is right that there were elements of the 2020 primary that were nutty, especially open borders. 

The GOP has lurched far, far to the right. There is an opening here, but there are, indeed elements of the Left wing of the Democratic Party to try and force their party even further left. I don't really understand the thinking behind that.

Campaign from the center and govern from the center-left is a really good strategy.

The Theocratic Right Gets Their Day

 Jon Chait does a good job laying out the broad history of the last 30-40 years when it came to the Reagan Coalition. For the most part, the neoconservative foreign policy hawks and the libertarian anti-statists have had the wheel and - while their agenda has largely been a disaster - they haven't been TOO far out of line with public opinion. That could be toxic, because - as he puts it:

Republicans will try to confine their ambitions to poll-tested measures like a 15-week abortion ban. But it is far from certain they will restrain a base that has the taste of victory. One prologue is Florida, where social conservatives led the party into a nationalized fight over a bill restricting schools from any mention of homosexuality. The pressure to demonstrate ideological commitment will push officials farther and farther rightward.

Meanwhile, the GOP operatives interviewed by Ben Jacobs feel that the Democrats will screw this up, because the Democrats always screw up. This elides the fact that more people vote for Democrats in every national election, but the GOP has leveraged the anti-democratic structures of the American form of government to avoid democratic accountability. It was interesting reading the GOP operatives saying things like this:

A senior Capitol Hill staffer made a similar point: “The left has lost the plot so much, it will neutralize what will be a vote-moving issue. The traditional left argument is about protecting women, but now they can’t even say what a woman is.” As the red-state operative wondered, the question is also whether abortion becomes a separate issue from the current cultural wars or if it just becomes “part and parcel with drag-queen story time and teaching kids hypersexual content in schools” and the other social issues currently animating the right.

This is kind of nuts. This is pure Fox News bullshit. It echoes this line from Chait's piece:

The conservative movement traditionally consisted of three main wings: foreign-policy hawks, anti-statist libertarians, and social conservatives. All three wings have developed radical ideas in the ideologically purified sanctity of their think tanks and media organs. 

The idea of epistemological closure has fascinated me for awhile. Chait and other have waged a lonely battle to try and avoid this on the Left, but certainly the Very Online Twitter Left that thinks Bernie was more popular than Hillary has fallen into this very trap. What's striking is that the entire GOP establishment has fallen into believing the Fox News bullshit. 

I've written before that everyone seems to think that the GOP are full of political masterminds, when really they have terrible structural advantages that allow them to pursue shitty policy without suffering the electoral consequences of it.

It could very well be the case that inflation destroys the ability of the Democrats to retain control of the Senate (and therefore the judicial nominations needed to counteract this theocratic lunacy). Inflation is a real problem. However, by November, it might be so baked into the cake that the death of a young woman in Texas from a self-induced abortion this fall could be a rallying cry for a surprisingly diverse counterwave.

The GOP operatives do have a point, when they say that Democrats shouldn't be going to far. "Safe, legal and rare" remains the best expression of the popular position on abortion. Women's autonomy works well, too. You just know that some nitwit will say that women should have abortion on demand through the third trimester, and that will become the "Democrat position" on Fox and OANN. 

Yglesias can be tiresome on this issue, but Democrats really should try some message discipline on popular positions, seize the middle ground and then be able to actually govern.

The future of democracy might depend on it.

Bill Clinton Would Get A Kick Out Of This

 The House should impeach Samuel Alito, John Roberts, Amy Coney Barrett, Brett Kavanaugh and Neil Gorsuch. While their answers in their confirmation hearings were lawyerly and ambiguous, you could make a compelling case that these five jurists perjured themselves - at least as much as Bill Clinton did in his evasive, lawyerly answers in the Paula Jones deposition. Republicans impeached him, knowing they wouldn't get the votes to remove him. Clinton, however, was popular and near the end of his term. The Court has finally and fully trashed its legitimacy in the eyes of a majority of Americans, plus they serve for life.

Now, impeaching them would not remove them from the bench, because there are simply not 17 GOP Senators to remove. There is probably not one. (Susan Collins will stroke her chin and say that they have learned their lesson.) And of course, packing the Court is the only proactive part of the GOP agenda.

However, impeaching the justices would have two important impacts. First, it would be "doing something" and pointing out why control of the Senate is so important. Getting vulnerable GOP Senators on the record before the midterms could help push a few seats Blue. Second, you help establish the illegitimacy of the Dobbs decision (and others). Eventually, hopefully, the Senate will have enough votes to codify Roe nationally. At that point, a conservative Court would simply rule that unconstitutional for whatever reason they could figure out. 

There's an historical anecdote - likely apocryphal - of Andrew Jackson referring to John Marshall's decision in Worcester v Georgia with the words, "John Marshall has made his decision; now let him enforce it." At some point, if the Court continues to resurrect Gilded Age jurisprudence and there aren't enough votes to expand the Court, you are simply going to have to nullify the actions of an illegitimate Court.

That begins by impeaching the Lying Five.

The New Gilded Age

 The recent rulings by the conservative junta on the Supreme Court are causing exactly the sort of despair and consternation that we could have anticipated. The margins of this decision are, of course, a byproduct of the 2016 election. Trump appointed 3 of the 6 justices that overturned Roe and created an untrammeled right to own a firearm both of which stand in opposition to the majority wishes of the population of the United States.

Anti-majoritarianism is a fundamental tenet of modern "conservatism," as their positions are increasingly held by fewer and fewer people. I do worry that the reverse partisanship effect - whereby people assume political positions based on their partisan allegiances, rather than the other way around - could create more people who adopt terrible, retrograde stances on any number of issues. However, the fact remains that there are solid - rock solid - majorities in favor of abortion access and reasonable gun safety measures. There's no reason to think the Court won't go further and attack Griswold or Obergfell.

A minority of Americans elect roughly 50% of the Senate. A minority of Americans elected Donald Trump and George W. Bush (the first time). These concurrent minority groups are able to pack the Court - the least responsive branch of government to the people - with far Right ideologues who are basically just making shit up from the bench.

Despite the usual sackcloth and ashes routine among the Very Online, this is not actually "the worst Court in history." During the 19th century, the Court was a powerful reactionary tool that issued such horrific decisions as Dred Scott - which denied Black citizenship, even if free - the Slaughterhouse Cases - which gutted the 14th Amendment - a host of decisions that curtailed any effort by workers to organize or states to regulate commercial activities - decisions like Lochner - and, of course, Plessy v Ferguson, which enshrined Jim Crow under the Constitution.

It was really only during the brief window of the Warren Court that the Supreme Court became a beacon for expanding the rights of Americans, rather than curtailing them. The Burger Court was still largely liberal and handed down decisions like Roe, but the slow march back to a Gilded Age Court is now complete. It is complete, because a minority of Americans were able to elect Donald Trump.

The problem, of course, is precisely that the Court is impervious to political pressure, especially with a 50-50 Senate and the filibuster in place. This could very well lead to depressed turnout in the midterms or it could lead to an angry swell of women voters surging to the polls. Or maybe inflation will override a woman's right to bodily autonomy. 

I can very easily see a situation where the majority of voters in November vote for Democratic candidates for the House and yet Republicans win control of the House. 

I think our institutions have been broken for a long time now. But inertia kept them functioning. Trump barged into those fractured institutions and shattered them. We no longer accept the results of elections; corruption and even sedition goes unpunished; rights we took for granted are being stripped away.

How do we survive as a country?

Could Their Be Prosecutions?

 Josh Marshall thinks there might be and it will be at large part because the January 6th Committee left the DOJ with no outs.

The Justice Department has been eager and willing to prosecute the various violent militia types who stormed the Capitol. They have been less eager to target those who fomented the mob. Some of this might be the legitimate worry that getting 12 Americans to agree that Donald Trump or even Rudy Giuliani is a criminal could be very difficult. Who - exactly - qualifies as an impartial juror when it comes to Donald Trump? Trying the case in DC could make it easier, but I can see the worry about indicting, trying and then watching a jury deadlock on convicting a former president. 

At some point, though, the case needs to be brought because this creates the ongoing trend of powerful people being beyond the law. That's untenable and yet precisely business as usual.

American democracy was attacked in the days leading up to and including 1/6. Defend the damned thing!

Insolvable

 Recently the governing body of international women's swimming has said they will not allow transgender women to compete if they went through male puberty. Megan Rapinoe has a response that makes sense, but both sides actually have an argument.

The rationale for dividing athletics into men's and women's divisions is that there are structural differences between male and female athletes. Male puberty provides men with more muscle mass than would female puberty. I enjoy women's soccer (mainly because the US is so good at it) but women's soccer simply isn't played at the same pace and power as men's soccer. The USWNT would be unlikely to beat any competent NCAA men's program. That's not a criticism of women's soccer, but the reason women's soccer exists separate from men's.

Rapinoe's point about inclusion is also a good one. Trans kids are at risk for all sorts of negative mental health outcomes, and while things are undoubtedly getting better for them, this represents a step back in many regards. Sports should be inclusive.

But they are also, by definition, competitions. We would ban a female athlete who took male hormones, because we understand that's cheating. Lia Thomas did not cheat, when she competed as a female swimmer, because there was no act of commission. However, going through male puberty gave her an advantage over other swimmers that would be cheating in other contexts.

I'm lucky, I suppose, as my sport is officially co-ed. I don't have to worry if a student is male, female or transitioning. We have weight classes that are designed to sort some of that out. If we didn't, I would want to be as inclusive as possible in my sport. However, in a few years, I imagine we will have female wrestling teams. In that situation, a trans girl - who had gone through male puberty - would present a competitive problem.

Obviously, this is a "problem" for a vanishingly small percentage of athletes. There were a couple of sprinters in Connecticut, and then there was Lia Thomas in the Ivy League. To a certain degree, this is a nontroversy, since it's dealing with massive outliers. But there's no trade off where transgender advocates can trade a few athletic opportunities for more support for transitioning teens. 

Like I said, it's insolvable. 

When The Gun Deal Falls Apart

 The Very Least They Could Do will turn out to be less than that, as John Cornyn is going to sabotage the Senate gun bill.

This, of course, will be the Democrats' fault, because Murc's Law is a harsh mistress. 

However, there is some hope that the process of watering down a bill and the GOP still not supporting it, will finally convince a critical mass of suburban Republican leaning women that the GOP is a death cult and they need to stop supporting it, no matter how scary those Black and Brown people are in the Big City. The guns in your lunatic neighbor's hands are scarier.

AO, If You're Listening...

I had an advisee - great kid, a touch goofy - who graduated last year (2021). He and I had two big arguments. The merits of crypto and the eminence of Elon Musk. All of this was simply me being an old fart and realizing that crypto is just another valueless bubble and Musk was just a conman wedded to the excess zeal of venture capitalism.

There really is nothing new under the sun.

Profiles In Cowardice

 I wish I could say that these hearings will lead to tangible improvement in American civic life. I have my doubts. The reality of both the events on January 2021 and the current hearings is that the GOP establishment is terrified of angering Trump. They don't want to purge their party of this malignancy, because he enjoys the adoration of the very "poorly educated" voters that they need to win elections. They look at Mitt Romney's 2012 election and the "missing white voters" and then they look at 2016 when those white voters showed up. 

So they punt on any sort of responsibility for endangering and continuing to endanger American democracy...and they will likely be rewarded for it in November, because of inflation.

It's one reason why I haven't been eager to post about politics recently. Too damned depressing.

The Bipartisan Gun Bill Will Fall Apart

 The unspeakable tragedy of Uvalde looked like it might prompt the absolute least possible response from the Senate GOP. The bill they have agreed upon is that absolute least possible response.

I would wager that this bill does not make it past John Cornyn's "concerns."

Cue the people on Twitter saying it's the Democrats' fault.

Past Time To Reset

 Josh Marshall's analysis about Biden meeting with bin Salman is spot on. There are a lot of reasons why we've had inflation for the past year, but the reason we continue to have high inflation is linked to energy price instability. Saudi Arabia, our erstwhile ally, is fucking us over. And there is nothing we can do about.

For now.

A separate set of negotiators are working on repairing the nuclear deal with Iran. Meanwhile, we should be looking to square things up with Venezuela. Even if we don't import a ton of Iranian oil, easing the sanctions and allowing Iran to sell its oil to Europe will help prices everywhere.

All of this, of course, is because many of the very worst regimes in the world sit on massive reserves of oil. Even the emerging democracies that do - Nigeria, Brazil, Mexico - are warped by this stuff. 

So, Saudi Arabia is screwing us over and our dependence on oil is screwing over millions of people around the world.

If it were up to me - and there is no chance it will be - I would probably acquiesce to accommodate the various kleptocracies and brutal dictatorships that currently hold a chokehold on global oil supplies. But long term, you'd need to be able to wean yourself off imported oil. For the first time, there's a technological ability to really do that. 

Once oil prices come down, any agreements with the House of Saud should be abandoned. Ally with Iran and Iraq and see how sustainable Saudi Arabia finds its situation.

Your drug dealer is not your friend.

Annnnd We're Back

 Lots of AP reading. Lots of travel. Finally settling in for a couple of weeks.

Luckily nothing happened while I was away...

Of course, nothing and everything always happen. The obsessions of the moment are often forgotten before the next obsession even comes along. There are still Covid Hawks out there and they thing the vast bulk of us are ignorant, selfish asses for not maintaining masks and distancing. In fact, we've just conveniently forgotten the fear we felt in March of 2020. That's easier.

I think the January 6th hearings are intended to remind us of why that was such a big deal. And maybe it will. But most likely we will forget again. 

It's our nature.

College Debt

 College costs and the resulting debt are a curious conundrum. Yglesias has one of his contrarian takes that sheds some light in some areas but leaves others obscured. 

He notes, rightly, that US universities are the finest in the world, and there is probably a strong correlation between how much they cost and how good they are. He also has some sympathy for the generation that graduated from college or graduate schools in the heart of the Great Recession. Their debts were higher to begin with and they landed in a low wages work environment.

One insight he puts well is that colleges become "better" by getting better Freshmen. How do you get better Freshmen? As someone who is going through this experience with our own children, you usually do it by offering cool stuff around the margins. You improve the "student life experience" much of which is tangential to actual learning. (What he leaves out is that if you are in a school with really strong students, your college experience will be better. Learning extends beyond the classroom.) He also takes on "administrative bloat" as being as much about perception as reality. Are DEI offices "bloat"? In some people's eyes, yes. In others, it's mission critical. 

I'm sympathetic to getting rid of the predatory nature of student loans. In no particular order:

- Student loans for graduates who go into public service for a number of years should be paid off in full.
- Student loans should have essentially no interest. College graduates are good for economic productivity, and subsidizing their interest would be a public good.
- Community college should be aggressively subsidized to teach immediate job skills. As close as we can get to free community college, the better. (Also, you're not going to a community college for the sports teams or the wellness center. You're going to get a two year degree that will make you an internet systems administrator.
- Some debt forgiveness is understandable, but simply giving a bunch of money to English majors who minored in beer pong is going to risk a serious backlash. And likely a deserved one. 

How do you attack student debt without creating a massive moral hazard? If my college is free, and I will likely get a degree regardless of how hard I work, why should I work hard? We like to joke that "Bs and Cs get degrees" but they absolutely do. Debts are debts. They are supposed to be repaid. But they be able to be repaid. 

There's a solution here that must extend beyond a "jubilee" for the perpetual student who's racked up $250,000 in debt getting a BA, MA and PhD in Comparative Literature. It won't make the WATB on Twitter happy, but that has to be OK. Good policy should be good policy.